In this report, Sunday Vanguard explores the background facts surrounding the November 1, 2024 arraignment by the Federal Government of 76 persons, including 32 minors, who participated in the last countrywide #EndBadGovernance protests and engages senior legal minds on the appropriateness of a High Court judge taking the pleas of minors in his court notwithstanding the provisions of the 1999 Constitution and the Child Rights Act on the matter.
Senior lawyers appear divided over the November 1, 2024 decision by a Federal High Court judge, Justice Obiora Egwuatu, to entertain a 10-count treason charge preferred by the Federal Government against 76 persons, including 32 minors, who allegedly participated in the 10-day #EndBadGovernance protests which held across the country in August, this year.
Some of the lawyers who held opposing views on the issue include the President of the Nigerian Bar Association, Mr Afam Osigwe, SAN, the first President of the Lawyers in Business Institute, LIBI, Aare Isiaka Abiola Olagunju, SAN, a former member of the Imo State House of Assembly and respected silk, Chief Mike Ahamba, SAN, a law lecturer and an Economic and Financial Crimes Commission (EFCC) prosecutor, Mr Wahab Shittu, SAN.
While they all agreed that it was wrong for the Federal Government to charge protesters with treason, they appeared divided on the decision by the trial High Court judge to proceed with the arraignment of tens of minors brought before him.
Specifically, some of them were of the view that, ordinarily, the judge should have turned back the police prosecutor who brought the charge on the account that arraigning minors before a High Court for a capital offence contravenes the provisions of the 1999 Constitution and the Child Rights Act 2003.
They contended that minors cannot be arraigned for capital offences in a High Court in Nigeria because the Children Rights Act 2003 prohibits the death penalty for anyone under 18 years old.
Whereas Section 33 of the 1999 Constitution endorses the death sentence for a capital offence, Article 221(1)(c) of the Child Rights Act 2003 provides that no child can be sentenced to death or have the death penalty recorded against them while Article 204 of the same Act states that children should not be subjected to the criminal justice process or criminal sanctions, but should only be subjected to the child justice system.
The lawyers further argued that as of November 2023, many states of the Federation, including the Federal Capital Territory, had endorsed the Child Rights Act.
Records show that FCT passed and assented to the Child Rights Act on July 31, 2003; Abia in 2006; Akwa-Ibom in 2008; Anambra in 2004; Bayelsa on May 6, 2016; Benue; on November 18, 2008; Borno on January 10, 2022; Cross Rivers in 2008; Delta in 2008; Ebonyi in 2010; Edo in 2007 and Ekiti in 2006.
Similarly, Enugu passed and assented to the Act in August 2016; Imo on August 4, 2004; Jigawa on December 22, 2021; Kaduna in March 2018 and Kano on May 24, 2023.
Indeed, one of the senior lawyers asked the National Judicial Council, NJC, to invite Justice Egwuatu for questioning and proper sanctioning.
But another lawyer said Egwuatu committed no offence, arguing that mere looking at the minors was not sufficient enough to conclude that the suspects were actually underage except there were proofs.
AGF disagrees
Meanwhile, the Attorney-General of the Federation, Lateef Fagbemi, SAN, said he did not agree with his colleagues who believed the judge erred.
He said arraigning and trying minors who had allegedly committed crimes before a High Court was not unconstitutional.
The AGF added that, according to the Nigerian Constitution, trying #EndBadGovernance protesters (minors) in a Federal High Court was not inappropriate, given the crimes with which they were charged.
Fagbemi, who spoke in Abuja, went on: “Let me seize this opportunity to clarify something. There is a misconception that, because these are children and minors (the arraigned #EndBadGovernance protesters), various theories have surfaced.
“No law in this country says a minor cannot be tried, and I have also heard suggestions that they should go to a family court.
“The study of the law and the Constitution leaves you no other conclusion than that the Federal High Court has jurisdiction in matters bordering on treason and related issues, so whatever the situation, the President has closed the chapter by his decision to have these young men released.”
The AGF also noted that considering the facts of the case, the offences were serious.
“Nonetheless, President Bola Tinubu, as a father and grandfather, chose to pardon them and drop the charges”, Fagbemi added.
“The President was very compassionate; he is a father and a grandfather. If you look at the facts in the possession of the security agency, you would marvel, but the President said, ‘despite all this, I have children, grandchildren,’ and that motivated his passion to release them and also enable them in some ways.
“So, the credit goes to him for showing compassionate consideration in releasing the young chaps.”
Background
Sunday Vanguard reports that the Federal Government had on November 1, this year, arraigned 76 persons, including 32 minors, who participated in the 10-day #EndBadGovernance protests in August, this year, before the Abuja Division of the Federal High Court.
The protesters, who were all clamped in detention with hardened criminals for three months, were arrested in the Federal Capital Territory (Abuja), Kaduna, Gombe, Jos, Katsina, and Kano states.
They were arraigned by the Inspector General of Police on 10 counts bordering on treason, intent to destabilise Nigeria and inciting to mutiny by calling on the military to take over the government from President Bola Tinubu, among others.
Specifically, they were accused to have between July 31, 2024 and August 10, 2024, in Abuja FCT, Kaduna, Kano and Gombe, within the jurisdiction of the court, while acting in concert with Andrew Martin Wynne (aka Andrew Povich) a British citizen, with intent to destabilise Nigeria, levy war against the state in order to intimidate or overawe the president, by attacking and injuring police officers and burning police stations, High Court Complex, NCC Complex, Kano Printing Press, Government House Kano, Kaduna Investment and Promotions Agency office, NURTW office and several other buildings and thereby committed an offence contrary to Section 410 of the Penal Code (Northern States) Federal Provisions Act CAP P3 LFN 2004″.
The government also accused them of having a plan to destabilise Nigeria by calling on the military to take over government from President Tinubu and by chanting, ‘Tinubu must go,’ ‘It is military we want’, while rioting and disturbing public peace.
Pleas/N10m bail
As proceedings commenced, the visibly unwell children were called to the dock to enter their pleas.
But in a sudden turn of events, four of the children — Umar Yunusa, Usman Suraju, Musa Isiyaku and Abdul Ganiu — collapsed and were rushed out of the courtroom, forcing the presiding judge to suspend the session until order was restored.
He thereafter admitted the accused persons to N10 million bail each and ordered that until they met their bail terms, defendants aged 18 and above should be remanded in the Kuje Custodial Centre while the minors (aged 18 and below) should be remanded in the Borstal Centre in Gwagwalada.
The proceedings had sparked controversy in the polity particularly with the admission of the judge in his ruling that some of the protesters he allowed the Federal Government to arraign before him were minors.
Nigerian law does not permit children to be arraigned before a High Court — Olagunju, SAN
For instance, Olagunju, SAN, condemned the arraignment.
The first President of the Lawyers in Business Institute said the law does not permit children to be arraigned before a Federal High Court, but rather in a family court, citing provisions of the Child Rights Act and the 1999 Constitution.
According to him, it was not only wrong to keep the children in detention for more than 48 hours, their eventual arraignment at a Federal High Court was also a gross violation of the provision of the Act and the entire Constitution.
“This is entirely a breach of the Child Rights Act, which is a part of the laws guiding the federation, but if they are minors, that means they are below the age of 18”, Olagunju said.
“To arraign a child at a Federal High Court is a serious breach of the Constitution and the Child Rights Act. It is highly inappropriate.
“By the provision of the Constitution, you can only be detained for a maximum of 48 hours.
“They cannot keep a minor in custody with adults. They should be kept in juvenile detention, not in a police station. There should be a specific detention for children and not with adults. So, what they are doing is very wrong”.
Judge should not have proceeded with the arraignment of the minors — Ahamba, SAN
Supporting Olagunju, another senior lawyer, Ahamba, simply said: “If you bring people into court on this kind of issue, the judge should have said: ‘you can’t do this and refuse to do it’.
“For detaining children, the underage, for three months in prison, I have nothing against the President on that issue. I have nothing against the judge who made the detention order.
“But I will be disturbed if the National Judicial Council, NJC, does not invite the judge for questioning because it is elementary that every lawyer knows that you don’t put underage people in custody with criminal adults. They are always put in the custody of either a parent or an uncle or somebody. You don’t send them to prison yard.
“That is what I believe every lawyer knows including anyone who purports to be a judge unless that person is purporting to be a lawyer.
“If he is a true lawyer, he should know. That is where I am concerned that a judge will allow that thing to happen under his or her charge.
“I mean whatever they did in government interest shouldn’t influence a judge. He should do what is right. “Why keep underage in prison yards for months? Why? I am very bitter. That is where I’m very concerned.
“It is for the legal profession to checkmate others. And if the legal profession now subjects itself to the vicissitude of the political class, then, we are in trouble in this country.
“So, the Attorney General of the Federation and the judge who made the order should be called to question by the Nigerian Bar Association and the National
Judicial Council (NJC) as the case may be. That is my position on that point”.
NBA President, Afam Osigwe, SAN, also deprecated the development.
You can’t hastily convict judge until there is proof protesters are minors — Wahab Shittu, SAN
But Wahab Shittu, SAN, urged Nigerians against jumping into hasty conclusion regarding the conduct of the trial judge in the case.
The EFCC prosecutor and law teacher said the mere fact that the suspects looked underage was not sufficient to conclude they were underage.
“In my view, we need to first of all verify that the elements involved are underage children through proper verification procedure. If they are actually children, what age?” he stated.
“Are they ought to have been tried before a juvenile court? Depending on their ages, we can’t determine whether it was appropriate or not appropriate to have arraigned them before a Federal High Court or a juvenile court.
“I think the court functions through the elements of proof. And that is our training as lawyers that we deal with evidence and the elements of proof.
“I think what the court can do in the circumstance is to request and direct that they furnish the ages of those children.
“The court in the exercise of its jurisdiction can make such an order before proceeding with further adjudication.
“But the court cannot just look at suspects brought before it and assume they are minors or adults.
“That will be an arbitrary exercise of judicial powers.
“The danger of making or drawing general conclusions is that we don’t have before us any clear evidence on the ages of these children.
“But notwithstanding that, the action taken so far by the Attorney-General who, upon the issue coming before the public domain, requested that the file should be transferred to his office before he could make an informed decision, in my view, is salutary”.
Lawyers Without Border blasts FG, judge
Avocats Sans Frontières France (Lawyers Without Borders France), in the meantime, said that it is deeply disturbed by reports that minors detained in connection with the #EndBadGovernance protests in Nigeria faced severe mistreatment with some reportedly collapsing in court due to malnutrition and harsh detention conditions.
The Country Director of ASF France in Nigeria, Mrs. Angela Uzoma-Iwuchukwu, said: “Detaining minors under conditions that jeopardize their health and well-being is a flagrant violation of their rights.
“Children are entitled to special protection under national and international law, and their prolonged detention without adequate care is both unlawful and inhumane.
ASF France urged the Nigerian government to uphold its commitments under the CRC and to ensure that the rights of children, including those to protection, development, and participation, are respected without exception.
“The mistreatment of detained minors is not only a legal failure but a moral one, undermining Nigeria’s duty to its young citizens and eroding trust in the justice system”, it added.
(Vanguard)
